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CASE NO.: Appeal (civil)  2748 of 2007

PETITIONER: Nagar Mahapalika, Kanpur

RESPONDENT: Smt. Vibha Shukla & Ors

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  2748                   OF 2007 [Arising out of S.L.P. (Civil)  No. 9072 of 2006]

S.B. SINHA, J.

1.      Leave granted.

2.      This appeal is directed against the judgment and order dated  01.09.2005 passed by a Division Bench of the Allahabad High Court  whereby and whereunder the writ petition filed by the appellant herein  questioning the judgment and order dated 18.01.1991 passed by the U.P.  State Public Services Tribunal, Lucknow, (for short, ’the Tribunal),  was  dismissed.   

3.      Respondent No. 1 was a Sports Teacher appointed on or about  21.7.1973 for a period of one year purported to be in terms of the U.P.  Muncipal Corporations Adhiniyam, 1959, (for short ’the 1959 Act’).  Her  services were extended from time to time.  By  reason of an order dated  18.08.1980, her services were terminated on payment of one month’s salary  in lieu of notice.  She filed an application before  the UP Public Services  Tribunal, inter alia, questioning the said order of termination dated  18.08.1980 and claiming regularization of her services purported to be in  terms of  Section 16(GG) of the UP Intermediate Education Act, 1921 (for  short ’the 1921 Act’).  The Tribunal allowed the said application. As  indicated hereinbefore,  the High Court dismissed the writ petition filed by  the appellant herein.   

4.      The short question which arises for consideration in this appeal is the  applicability of  the 1921 Act vis-a-vis  the 1959 Act.    

5.     The 1921 Act was enacted to establish a Board to take the place of the  Allahabad University in regulating and supervising the system of High  School and Intermediate Education in the United Provinces, and to prescribe  the courses therefor.  Appointment in terms of the said Act is permissible  only upon furnishing information in that behalf to the District Inspector of  Schools as laid down under Section 16-E(2) thereof.  A teacher of an  institution is required to be selected by a Selection Committee constituted  thereunder. The Committee of Management of the institution is empowered  to appoint candidates out of the list of teachers recommended in order of  preference.  The names of the selected candidates, as far as practicable,  should consist of three candidates for each post found by the Selection  Committee to be suitable for appointment.  It is required to communicate its  recommendations together with such list to the Committee of Management  in terms of Sub-section 6 of Section 16-E of the 1921 Act.  However, sub- section (11) thereof  provides for a non obstante clause, in terms whereof,

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appointments in the case of a temporary vacancy caused by the grant of  leave to an incumbent for a period not exceeding six months may be made  by direct recruitment or promotion without reference to the Selection  Committee.  The proviso appended thereto in no uncertain terms states that  such an appointment shall not continue for a period of more than six months  or beyond the end of the educational session during which such appointment  was made.   

6.      Section 16-F of the Act prescribes the manner in which the Selection  Committee is to be constituted. Section 16(FF) of the Act provides for the  terms and conditions of service of the Head of Institutions, teachers and  other employees.   

7.      The Legislature of the State of Uttar Pradesh inserted Section 16(GG)  in the 1921 Act by the UP Act No. 5 of 1977, which came into force with  effect from 21.4.1977.  It reads as under :

"16(GG): Regularization of appointment of ad hoc  teachers: (1) Notwithstanding anything contained  in Section 16_E, 16-1 and 16-FF, every teacher of  an institution appointed between August 18, 1975  and September 30, 1976 (Both dates inclusive) on  ad hoc basis against a clear vacancy and  possession prescribed qualifications or having  been exempted from such qualifications in  accordance with the provisions of this Act, shall,  with effect from the date of commencement of this  section, be deemed to have been appointed in a  substantive capacity, provided such teacher has  been continuously serving the institution from the  date of his appointment up to the commencement  of this section."          

8.      The 1959 Act, on the other hand, provides for the mode and manner in  which appointment for the employees of the Municipal Corporations are to  be made.  Section 106 of the 1959 Act provides for creation of one or more  posts specified therein; Clause (vi) whereof reads as under : "106. Creation of posts \026 (1) Subject to such  conditions as may be prescribed a Corporation  may from time to time create one or more of the  following posts, as it may consider necessary, in  connection with its affairs, namely \026  ***                     *** (iv)    other posts of officers; staff and other  servants necessary for the efficient discharge of its  functions"

9.      Section 107 prescribes the manner in which such appointments are  required to be made.  Sub-sections (2) and (3) thereof read as under :

"(2) Appointments to the posts not included in the  posts referred to in Sub-section (1) per mensem  shall be made after consultation with the State  Public Service Commission in the manner  prescribed and not otherwise.  The authority to  appoint such officers and servants of the  Corporation shall vest \026  (a)     in respect of those officers and servants who  are immediately subordinate to the Mukhya Nagar  Lekha Parikshak, in the Mukhya Nagar Lekha  Parikshak, and (b) in respect of all other officers and servants, in  the Municipal Commissioner. (3) All other appointments except those specified

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in Sub-sections (1), (2) and (5) shall be made in  accordance with the recommendations of a  Selection Committee constituted under Sub-section  (4) and authority to make such appointments shall  vest \026  (a)     in respect of those officers and servants who  are immediately subordinate to the Mukhya Nagar  Lekha Parikshak, in the Mukhya Nagar Lekha  Parikshak, and (b)     in respect of all other officers and servants,  in the Municipal Commissioner."                          10.     Sub-section (4) of Section 107 provides for constitution of the  Selection Committee referred to in sub-section (3) therein.  Section 108,  however, empowers the authorities to make officiating and temporary  appointments to certain posts without consulting the State Public Service  Commission or obtaining the recommendations of the Selection Committee,  but no such appointment shall continue beyond the period of one year, nor  shall be made where it is expected to last for more than a year without  consulting the State Public Service Commission or otherwise than in  accordance with the recommendation of the Selection Committee, as the  case may be.  

11.     With effect from 01.12.1977 by UP Act 10 of 1978, Section 108-A  was introduced in the 1959 Act.  A further amendment was made by  inserting Clause (b) therein with effect from 25.04.1978.  Section 108-A of  the 1959 Act reads as under :

"108-A \026 Appointment of teachers of institution maintained by  Corporations \026 Notwithstanding anything in Sections 107 and  108 \026

       (a) the appointment of a teacher in any college, affiliated  to any University as defined in the Uttar Pradesh State  Universities Act, 1973 and maintained by a Municipal  Corporation, shall be made in accordance with the provisions of  that Act, and  

       (b)     the appointment of a teacher or Head of an  institution recognized in accordance with the Intermediate  Education Act, 1921 and maintained by the Municipal  Corporation shall be made in accordance with the provisions of  that Act."

        12.     Section 540 occurring in Chapter XXIII of the 1959 Act provides for  the Rule making power of the State.

13.     It is not in dispute that pursuant to or in furtherance of the said  provision, UP Nagar Mahapalika Education Services Rules have been  framed. Rule 13 of the Rules provides for appointments to be made through  a departmental Selection Committee. Rules 16 and 17 lay down the  procedure for appointment.  Rule 19 empowers the appointing authority to  make temporary appointment for a period of less than one year.  Sub-rule (3)  of Rule 19 reads thus :

"(3)    Temporary and officiating appointments \026  The appointing authority shall make appointments  in temporary and officiating vacancies also from  the list, which will be valid for one year or the next  selection whichever is earlier, of candidate  recommended by the Commission or prepared by  the Selection Committee, as the case may be.

       Provided that in any year if the list is

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exhausted or if no candidate is available in that list,  the appointing authority may, without consultation  with the Commission, where such consultation is  necessary, or without the recommendation of the  Selection Committee, make appointments in such  vacancies for a period not exceeding one year from  amongst servants or persons possessing the  qualifications prescribed for recruitment to those  posts."

14.     First respondent, as noticed hereinbefore, was appointed in 1973.  Her  appointment indisputably was extended from time to time.  Having regard to  the statutory embargo contained in Section 108 of the 1959 Act, each of  such extension must be treated to be a fresh appointment.  She was  appointed on a temporary post.  Her appointment indisputably was not made  in terms of Section 16-E of the 1921 Act.  It is of some significance to notice  that whereas an appointment in terms of Section 108 of the 1959 Act cannot  be made for a period exceeding one year,  in terms of Section 16-E(11) of  the 1921 Act, an appointment can be made for a period not exceeding six  months and, that too subject to the condition that no appointment made  under the said section would not, in any case, continue beyond the end of the  educational session during which such appointment was made.   

15.     The 1959 Act, being a later Act, ordinarily would prevail over the  1921 Act.  Rules have also been framed under the 1959 Act.  The provisions  of the said Rules being in consonance with the provisions of the 1959 Act  would be treated to be a part thereof as it is well-settled that Rules validly  framed would become part of the main legislation.  Any appointment made  in terms of Section 108 of the 1959 Act must, thus, conform to the  provisions contained therein as also the rules framed thereunder.  Section  108 of the 1959 Act is an exception to the provisions of Section 107 thereof,  which in turn is in tune with the constitutional scheme laid down under  Articles 14 and 16 of the Constitution of India.  Prior to 1.12.1977 when  Section 108-A was introduced, an appointment of a teacher to be made by a  Municipal Council  was to be governed by the provisions contained therein  or the rules framed thereunder. Section 108-A does not incorporate the  provisions of the 1959 Act by reference.  It merely carves out an exception  to Section 107 and 108 of the Act provided that all such appointments were  made in terms of the 1921 Act.  Section 16 (GG) of the 1921 Act per se,  therefore, would not apply when no appointment has been made in terms  thereof.  Section 16(GG) of the 1921 Act raises a legal fiction wherefor the  conditions precedent laid down thereunder must be strictly complied with.   [See Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., 2007 (5) SCALE 452]   

16.     Respondent No. 1 was appointed  during the period August 18,1975  and 30th September, 1976 on temporary basis.  Such an appointment was not  made in terms of sub-section (11) of Section 16-E of the 1921 Act.  There is  nothing to show that there existed a clear vacancy or she was appointed in  terms of the Act.  Procedures for appointments under the 1921 Act and the  1959 Act are different.  The Selections Committees constituted under both  the Acts also are different.  The terms and conditions of the teachers  appointed under the two acts are also different.  It is, thus, difficult to accept  the findings of the Tribunal as affirmed by the High Court that the said  provisions would apply to the case of the first respondent herein.          17.     Learned counsel appearing on behalf of the respondents, however, has  drawn our attention to paragraph 4.5 of the counter affidavit to contend that  the respondent was appointed along with others during the period 1.7.1976  to 30.6.1977.  It may be so but having not been appointed in conformity with  the provisions of the 1921 Act,  in our considered opinion,  Section 16-GG  thereof has no application in the instant case.   

18.     Our attention has been drawn to a decision of this Court in  Vikramaditya Pandey v.  Industrial Tribunal, Lucknow & Anr. [(2001) 2  SCC 423] wherein  this Court in a case arising under the UP Cooperative

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Societies Employees Services Regulations, 1975  opined that having regard  to Regulation 103, termination of service of an employee in violation thereof  would be illegal, stating :  

 "In this case we do not find any such pleading of special  circumstances either before the Tribunal or before the  High Court. Since Regulation 103 of the Regulations is  referred to in the order of the Tribunal as well as in the  High Court and it has bearing in deciding the  controversy, the focus is needed on it. It reads:  "103. The provisions of these Regulations to the extent of  their inconsistency with any of the provisions of the  Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya  Adhishthan Adhiniyam, 1962, Workmen’s Compensation  Act, 1923 and any other labour laws for the time being in  force, if applicable to any cooperative society or class of  cooperative societies, shall be deemed to be inoperative."  By a plain reading of the said Regulation it is clear that in  case of inconsistency between the Regulations and the  provisions of the Industrial Disputes Act, 1947, the State  Act, the Workmen’s Compensation Act, 1923 and any  other labour laws for the time being in force, if applicable  to any cooperative society or class of cooperative  societies, to that extent the Regulations shall be deemed  to be inoperative. In other words, the inconsistent  provisions contained in the Regulations shall be  inoperative, not the provisions of the other statutes  mentioned in Regulation 103. The Tribunal in this regard  correctly understood the regulation but wrongly refused  the relief on the ground that no reinstatement can be  ordered on a regular employment in view of the  provisions contained in the said Regulation. But the High  Court read the regulation otherwise and plainly  misunderstood it in saying that if there is any  inconsistency between the Regulations and the Industrial  Disputes Act, 1947 and other labour laws for the time  being in force the Regulations will prevail and the  Industrial Disputes Act, 1947 and other labour laws shall  be deemed to be inoperative. This misreading and wrong  approach of the High Court resulted in the wrong  conclusion. In the view it took as regards Regulation 103  the High Court proceeded to state that even if there was  retrenchment in view of Regulation 5 of the Regulations  the Labour Court was not competent to direct  reinstatement of the appellant who was not recruited in  terms of Regulation 5 because the Labour Court had to  act within the ambit of law having regard to the  Regulations by which the workman was governed."

19.     Such a question does not arise for consideration before us.   Indisputably,  the appointment as also the terms and conditions of services of  the first respondent are governed by the 1959 Act.  Herein no case involving  inconsistencies in the provisions of the two statutes arises.  

20.     Furthermore, it is trite that regularization is not a mode of  appointment.  It has been so held by a Constitution Bench of this court in  Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. 2006 (4) SCC  1].  The principle enunciated by the Constitution Bench of this Court in  Umadevi (supra) has inter alia been applied by this Court in  Post Master  General, Kolkata & Ors. v. Tutu Das (Dutta) [2007 (6) SCALE 453] stating  as under :

"12.   What was considered to be permissible at a given  point of time keeping in view the decisions of this Court

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which had then been operating in the field, does no  longer hold good.  Indisputably the situation has  completely changed in view of a large number of  decisions rendered by this Court in last 15 years or so.  It  was felt that no appointment should be made contrary to  the statutory provisions governing recruitment or the  rules framed in that behalf under a statute or the proviso  appended to Article 309 of the Constitution of India.   

  13.  Equality clause contained in Article 14 and 16 of  the Constitution of India must be given primacy.  No  policy decision can be taken in terms of Article 77 or  Article 162 of the Constitution of India which would run  contrary to the constitutional or statutory schemes."

21.     Submission of the learned counsel that persons similarly situated are  still continuing in service is not of any moment.  This aspect of the matter  has also been dealt with by this Court in Post Master General, Kolkata  (supra) stating:

  "17. Submission of Mr. Roy is that the respondent has  been discriminated against inasmuch as although the  services of Niva Ghosh were regularised, she had not  been, may now be noticed.   

  18.  There are two distinctive features in the present  case, which are:-   (i) Equality is a positive concept.   Therefore, it cannot be  invoked where any illegality has been committed or  where no legal right is established. (ii)  According to the appellant the respondent having  completed 240 days,  does not fulfil the requisite criteria.    A disputed question of fact has been raised.  The High  Court did not come to a positive finding that she had  worked for more than 240 days in a year.    19.  Even otherwise this Court is bound by the  Constitution Bench decision. Attention of the High Court  unfortunately was not drawn to a large number of recent  decisions which had been rendered by this Court."

22.     For the reasons aforementioned, we are of the opinion that Section  16(GG) of the 1921 Act has no application to the fact of the present case  and, thus, the Tribunal as also the High Court committed a manifest error in  passing the impugned judgments.  They are set aside accordingly. The  appeal is allowed. However in the facts and circumstances of this case, there  shall be no order as to costs.